Director of Public Prosecutions v Scollary
[2019] VCC 1958
•26 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 19-01420
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY JOHN SCOLLARY |
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 15 November 2019 | |
DATE OF SENTENCE: | 26 November 2019 | |
CASE MAY BE CITED AS: | DPP v Scollary | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1958 | |
REASONS FOR SENTENCE
Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge of dangerous driving causing death – one charge of failing to render assistance after a motor vehicle accident in which a person was killed – exceeding the proscribed concentration of alcohol – relevant prior criminal history – dangerous driving a result of inattention – fatal vehicle collision with a cyclist – genuine remorse and insight – general deterrence is a prominent sentencing consideration – low risk of reoffending.
Legislation Cited: Crimes Act 1958, Road Safety Act 1986, Sentencing Act 1991
Cases Cited:DPP v Weybury [2018] VSCA 120
Sentence: Total effective sentence of 3 years imprisonment, eligible for parole after serving 1 year and 6 months imprisonment.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Devanny (Sentence) Mr D Brown (Plea) | OPP |
| For the Accused | Mr K Noonan (Sentence) Mr J Williams (Plea) | Noonan & Sutherland |
HIS HONOUR:
Introduction
Timothy John Scollary, you have pleaded guilty to one charge of dangerous driving causing death, contrary to s 319(1) of the of Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 1). And one charge of failing to render assistance after a motor vehicle accident in which a person was killed contrary to ss 61(1)(b) and 61(3) of the Road Safety Act 1986 which carries a maximum penalty of 10 years imprisonment (Charge 2).
You also pleaded guilty to one related summary charge, Charge 5, exceeding the proscribed concentration of alcohol contrary to s.49(1)(g) of the Road Safety Act 1986, which carries a maximum penalty of 20 penalty units in this instance.
You have also admitted your prior criminal history.
Circumstances of the offence
A prosecution opening was tendered on the plea and may be summarised as follows:
On Friday 4 December 2018, you, Timothy Scollary visited your mother in a nursing home in Dunolly. You were returning to Melbourne driving your grey 2001 Commodore Station Wagon and were approximately 1.2 kilometres from the Calder Highway, when you approached a rise in the road known as Fogarty’s Gap at approximately 6.30 pm.
Michael Philip Grinter was 65 years of age at the time of the collision. He was a local resident of Chewton and had been an avid cyclist all his life. Up until about 9 years before his death he was actively engaged in road racing competitions and after he stopped racing he regularly rode socially on the roads around the Chewton area. On this occasion he was wearing lycra and a helmet. Mr Grinter was travelling in an easterly direction along Fogarty’s Gap Road.
Fogarty’s Gap Road is a country road which lies in a general east/west alignment and runs between Maldon and Ravenswood South, where it intersects with the Calder Highway. At the scene of the collision, it has provision for one lane of traffic in each direction with the lanes of traffic being separated by continuous double white lines. Each lane of traffic is about 3.8 metres wide. The road is constructed of bitumen which is in good condition. The collision occurred on the approach of a crest of a hill in the east bound lane approximately 1.2 kilometres west of the Calder Highway. There were no fog lines on either side of the road and both directions of traffic are bordered by a wide shoulder that leads to a high cutting. The posted speed limit is 100 km/h.
As you drove towards the crest of the rise, you veered to the left over the edge of the bitumen and the front driver’s side of your vehicle struck the rear of Mr Grinter’s bicycle. The force of the impact resulted in Mr Grinter coming into contact with the driver’s side of your car windscreen and then being thrown into a narrow culvert on the north side of the road where he died. You came to a stop shortly after the collision and Mr Grinter’s bicycle came to rest almost in the centre of the road beside the front driver’s side of your vehicle. Mr Grinter came to rest about 8.15 metres from the front of your car.
Mr Grinter suffered fatal injuries as a result of the collision. You did not suffer any injuries. You got out and stood beside your car. Shortly after the accident Alexander Maylor came across the scene and asked you if you were okay. You told him that you were fine and that everything was okay. You walked away from him and stated that ‘they were on their way’. As you were walking away, Mr Maylor again asked if you were okay and you replied, ‘he’s dead, there is nothing you can do’. Mr Maylor then looked towards the gutter and saw Mr Grinter lying there. During this time, other cars stopped at the scene.
Craig Virtue also stopped his car at the scene and wound down his window to talk to you. You told him ‘I’ve just killed a cyclist, the police have been called’.Mr Virtue asked you if you were alright and you replied, ‘You can go, you don’t need to stay’. You then walked across to the other side of the road with a bottle of water and sat down against the rock wall of the cutting.
Sonia Empson also stopped at the scene of the collision. She saw you standing on the side of the road and approached you and asked if you were okay. You replied, ‘Fuck off, I've called my sister, he is dead’.Ms Empson then noticed Mr Grinter lying on the side of the road. She ran to him and started CPR but did not get a response.
Ms Empson was later assisted by Fiona Cairns who was also driving by. Fiona Cairns who is a psychiatrist, stopped, identified herself as a doctor and attempted to find signs of life and continued CPR with Ms Empson until paramedics arrived. Ms Cairns did not speak to you at the scene however when she first arrived she overheard you speaking on the phone and say ‘I’ll be in gaol' there was a pause, then you said ‘I’ve had a few’.Police and Ambulance subsequently arrived and attended to Mr Grinter who was pronounced deceased. You were spoken to by police and a preliminary breath test was conducted which subsequently detected alcohol in your breath. You were conveyed to the Castlemaine Hospital where a blood sample pursuant to s 55BA of the Road Safety Act 1986 was taken. The sample was subsequently analysed which returned a blood alcohol concentration of 0.067%. You were arrested and conveyed to the Castlemaine Police Station where you were formally interviewed.
Police attended the scene and the investigation was conducted by the Major Collision Investigation Unit. On the day of the collision, Detective Senior Constable
Melanie Macfarlane from the Collision Reconstruction Unit attended and conducted a scene investigation. A reconstruction of the collision was conducted and considering all the information available to her, Detective Macfarlane concluded the following:
The Commodore was travelling between 76 to 87 kilometres per hour when it collided with the cyclist. The cyclist was 0.78 metres from the northern edge of the bitumen when he was struck by the vehicle. The passenger side wheels of the Holden Commodore were 0.30 metres north on the edge of bitumen in the gravel shoulder, at the time of the collision.
Your mobile phone was seized at the scene and an analysis was conducted. The analysis revealed that several messages were sent to your sister not long after the collision. They were as follows:
6:42 pm – ‘Call me now’
6:42 pm – ‘Urgent now’
7:00 pm – ‘I have killed a cyclist’
7.00 pm – ‘A very good lawyer would be handy’
7:10 pm – ‘Real reality is the 005 level’
Further telephone checks revealed that you did not call 000 following the collision. Instead you called your sister who then called 000 on your behalf and reported the collision. At no time were you seen attending to Mr Grinter.
Doctor Michael Phillip Burke, from the Victorian Institute of Forensic Medicine, conducted an external examination on the body of Michael Grinter which revealed multiple bruises and abrasions over his body and limbs. A post-mortem CT scan was conducted which revealed left facial and skull fractures with traumatic subarachnoid haemorrhage and interventricular haemorrhage. The cause of death is described as ‘head and neck injuries in a motor vehicle incident’.
An expert opinion was sought from the Victorian Institute of Forensic Medicine in relation to the results of the analysis of the blood sample you provided. Dr Morris Odell concluded:
You were driving after having consumed alcohol;
The prescription medication you were taking for arthritis would not have had any effect on your driving ability; and
You had a blood alcohol concentration between 0.068% and 0.095% at the time of the collision.
You were formally interviewed at the Castlemaine Police Station later that evening. You told the police that you had visited your mother in a nursing home in Dunolly earlier that day. You said that you arrived at Dunolly at about 11.30 in the morning and then went to the Maryborough Golf Club for lunch with your mother and sister. You said you had two glasses of wine with your lunch between about 12.30 and 1.45 pm. You said you were driving back towards the Calder Highway at the time of the collision and that you were familiar with the road as you had been making the same trip once a week for the last six months.
You told the police that it was a bright sunny day and that you were ‘gobsmacked’ when you saw the bicycle immediately in front of you. You told the police that you thought the cyclist was towards the middle of the road, close to the double white lines. You said that you didn’t see him until he was at the top of the hill and that you slammed on your brakes as soon as you saw the cyclist. You said you didn’t know if your car skidded when you applied the brakes, but you stopped your car immediately after the collision. You rejected the suggestion that your car was in the gravel shoulder at the time of the collision.
You were also asked questions by the police about what you did following the collision. You said you didn’t check on the cyclist as you didn’t want to disturb the scene of the accident. You said at no stage did you check to see whether he was still alive. You were asked how much time had passed before someone stopped and got out and you answered ‘10 minutes, 15 minutes’.
Nature and gravity of the offending
The charge of dangerous driving causing death is capable of covering a wide variety of circumstances. In this case, it was submitted by Mr Brown who appeared on behalf of the Director of Public Prosecutions that the dangerousness of your driving was as a result of prolonged inattention primarily based on the reconstruction of the collision. At the time of impact your passenger side wheels were 0.30 metres into the gravel shoulder of the road. It was also pointed out that 122 metres from the point of impact there is a sign alerting drivers to the gradient of the hill. Further, the reconstruction concluded that the front driver’s side of your vehicle struck the rear of Mr Grinter’s bicycle. Thus, you had drifted some distance into the left off the bitumen and into the gravel before the collision.
As was discussed during the plea, categorising your conduct by reference to a phrase such as ‘Prolonged inattention' may be problematic. What is clear is that you lost concentration for a period of time long enough to allow you to drift into the far left position as described when you struck Mr Grinter. My understanding of the way in which the prosecution use the phrase ‘Prolonged’ is in contrast to those cases where there has been a momentary lapse of attention and moral culpability consequently may be reduced when there are no other aggravating features.
Mr Williams who appeared on your behalf submitted that there are a number of matters that reduce your moral culpability. However he accepted that this case was not a case of momentary inattention. While you had consumed alcohol, the prosecution does not contend that your driving was impaired as a result. Further, you were not speeding, you were not using a mobile phone and there is no evidence of erratic driving in the period leading up to the collision. I accept and take into account these matters in assessing the gravity of your offending.
In all the circumstance in my view this is not a case where your moral culpability can be considered as in the lower category. That said your conduct is not in the ‘Worst category’[1] either. What is not in dispute, is that you lost concentration for such a period of time that your car had drifted off the bitumen and into the gravel shoulder.
[1]DPP v Weybury [2018] VSCA 120.
It is clear from the photographs and the video of the drive through that was played at the plea hearing, that this stretch of road is narrow and would require considerable attention – most particularly if the driver was approaching a cyclist. The tragedy of this accident is a reminder that a driver must remain alert at all times on a road such as this.
Charge 2 carries the same maximum penalty as Charge 1, which reflects the serious nature of the charge. In this instance it seems inexplicable that you were aware of the fact that you had struck a cyclist and would have been well aware that he could be seriously injured, however you did not approach him to ascertain the situation or offer assistance. More disturbingly, you did not immediately call 000 for assistance and some 10 to 15 minutes passed before another person attended to Mr Grinter. I accept that you would have been in a state of panic, however it is clear from your conduct that you were able to make rational decisions such as calling your sister. It is also disturbing that your focus was on the possible consequences of your conduct rather than the welfare of Mr Grinter. You were heard to say that ‘I’ll be in gaol' and ‘I’ve had a few’. Further, your texts to your sister indicate that you were concerned about your blood alcohol level.
In my view this is a relatively serious example of this offence. Mr Williams contrasted your behaviour with the circumstance of a person leaving the scene of an accident. However that is different conduct and here I am assessing your conduct based on the particular sub-section of the Road Safety Act which requires a driver to render assistance if he or she knows, or ought reasonably to have known, that as a result of the accident a person is killed, or is suffering serious injury.
Victim impact statements
Six victim impact statements were tendered on the plea from the following: Tavee Grinter (Mr Grinter’s wife), Pip and William Grinter (Mr Grinter’s sons), Debra Grinter and Jane Jarmen (Mr Grinter’s sisters) and Helen McGeachin (Mr Grinter’s ex-wife). Three of the six victim impact statements were read in open court while the other three victims did not wish theirs to be read. I have taken into account each victim impact statement. They all eloquently express the enormous grief and loss each have suffered as a result of the death of Mr Grinter. Each victim understandably conveys the pain and emotional effect the crime has had on them individually in coming to terms with their loss.
A common theme in the victim impact statements is that Michael Grinter was a very loved and respected man who will be greatly missed. He was a very talented person who ran a successful business making flutes and recorders that were sold internationally. He had recently remarried in 2016 and he was enjoying a new chapter in his life, including as a grandfather.
I acknowledge that the sentence I must impose can in no way be a measure of the worth of the life of Michael Grinter, nor can it alleviate the grief the family continues to suffer. Rather, the sentence I must impose is a reflection of a large number of factors, which judges are required by law to take into account, only one of which is the impact on victims.
Personal circumstances
You are 65 years of age. You were born and grew up in Maryborough in Central Victoria. You report that you had a loving and caring upbringing. You were adopted at the age of three and have never met your biological father. You met your biological mother when she was 85 and she died of cancer in 2002. Your adoptive father died of a heart attack in 1990 at age 66. Your mother is currently age 91, lives in a nursing home in Dunolly and is in poor health.
You have two older sisters who are biological children of your parents. One of your sisters lives in the Maryborough region and she is a retired school teacher and she has been very supportive of you. Your other sister was also a teacher however you have had minimum contact with her since the accident in December 2018.
You attended Maryborough Primary School and then Maryborough High School, passing your HSC. You relocated to Melbourne age 18 and undertook business studies for six months at the South Melbourne Technical College. In 1972, you attended RMIT and undertook a Graduate Diploma in Public Administration. At the same time you were working with the Department of Primary Industry. You obtained your diploma at the end of 1976 and it was at that time that you were one of eight out of 90 students, to gain a mature age entry into the University of Melbourne Law School. You then obtained a job with the CES in Wangaratta and as consequence you did not persevere with your law studies. In the alternative you upgraded your Graduate Diploma in Public Administration to a Degree and two years later you obtained a degree in business studies. In 1980 you commenced university studies undertaking a Master of Business Administration at Monash which you did not complete.
Together with three friends, you bought a taxi in 1980 and you continued to work full-time with the public service while running the taxi business. At the same time you were also Secretary of the Malvern branch of the Australian Labour Party.
In 1984 you met and married your wife Rosemary. Your wife was a British national travelling around Australia. You travelled with your wife to London and settled there for a number of years. Unfortunately the marriage had its difficulties and at one time your wife left you for a period of time, although returned some six months' later. In 1992 you set up a business called Clunes Collections which was a hospital debt collection business and at the same time invested in real estate and other business ventures. You describe your marriage as unhappy which ultimately ended in divorce in 2001. By this time you had spent some 17 years in England.
On your journey back to Australia, you stopped in India and took an interest in the preservation of Bengal tigers ultimately leading to an introduction to a wildlife photographer, whom you funded to produce a coffee table photographic book. As a result of the charges you have lost your taxi licence and survive now on the age pension. You currently live alone.
A report was prepared by clinical psychologist, Jeffrey Cummins and tendered on the plea. Mr Cummins’ impression of you is that you present as a very colourful, intelligent and eccentric person. Mr Cummins provides an extensive, detailed history, some of which I have summarised above.
Mr Cummins notes that during interview you spontaneously expressed guilt and remorse concerning your offending behaviour and further, that you spoke in empathic terms concerning the victim and the victim’s family and friends. From a clinical perspective, Mr Cummins found that you did not present as being psychotic or schizophrenic and you did not present as having any personality disorder. He did note however, that you presented as being mildly to moderately anxious and mildly to moderately depressed, which you yourself attribute as being primarily reactive to your current legal situation.
You have recently been diagnosed with prostate cancer and following an MRI in July this year, what was considered a low grade version of the disease is now requiring intervention and treatment. However with surgery or radiation, those treatments are likely to be successful according to the medical reports tendered.
A number of references were tendered on the plea and evidence was called from two of the writers of those references. Elissa Ritchie has known you for some 48 years. She spoke of the significant contributions you have made to the community including allowing two refugees to live at your home as they rebuilt their lives in Australia. She also gave evidence of your strong social conscience generally and your contribution to the less fortunate in our community. Ms Richie confirmed your commitment to charitable projects such as the preservation of tigers and other threatened species. She also stated that you have demonstrated great remorse to the family and friends of Mr Grinter, openly acknowledging your mistake.
Barry Parker has known you for 40 years and he too gave evidence confirming much of what Ms Ritchie said, including witnessing your genuine remorse.
Sentencing considerations
Mr Williams highlighted a number of matters in mitigation. First, your plea of guilty which was entered at the committal mention stage. Your plea has saved the significant time and expense of a trial and importantly has saved the witnesses from having to give evidence and relive the event. In the circumstances, your plea therefore has facilitated the course of justice and you are entitled to the benefit of that.
Over and above your plea of guilty I accept that you have demonstrated genuine remorse. This is evidenced from the witnesses that gave evidence on the plea and also in your spontaneous expressions of remorse to Mr Cummins during your interview with him.
You do have one prior driving matter which is of relevance. It related to leaving the scene of an accident where, when you were driving a taxi, a passenger fell as you drove off following a dispute over a fare. That matter occurred in 2012 and I accept that while relevant, the circumstances are very different to what occurred here.
I take into account your current health concerns as outlined and that managing your condition and obtaining treatment in custody will be more difficult than if you were in the community and able to access the required specialists.
Offences of this nature clearly dictate that general deterrence is a prominent sentencing consideration. Drivers must remain alert at all times, particularly on country roads such as this one where speed limits are often higher and the road is narrow, as was the case here. In relation to Charge 2, drivers must also be sent a message that they have serious responsibilities if they are involved in a collision, where someone is seriously injured or killed.
Specific deterrence in my view does not need to be given great weight in the sentencing consideration. While you do have a relevant prior matter, it is clear from all of the material, that you are relatively low risk of reoffending. You are 65 years of age and have a very limited history, despite also being on the road for long periods of time as a taxi driver for many years. You have demonstrated insight into your conduct and you accept that you made a terrible mistake that resulted in significant tragedy. Similar reasons in my view your prospects of rehabilitation may be considered as very strong.
Sentence
Mr Scollary, will you please stand. On Charge 1, dangerous driving causing death, you will be convicted and sentenced to two years and six months imprisonment. On Charge 2, failing to render assistance, you will convicted and sentenced to 18 months imprisonment. I direct that six months of Charge 2 be cumulative on Charge 1, making for a total effective sentence of three years imprisonment. I direct that you serve one year and six months before becoming eligible for parole.
On summary Charge 5, exceeding the proscribed concentration of alcohol, you will be convicted and fined $250.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 11 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
In relation to Charge 1, pursuant to s 89(1) and s 89(2)(a) of the Sentencing Act 1991, any licence you hold will be cancelled and you will be disqualified from obtaining a licence for 18 months from today. In relation to Charge 2, pursuant to s 61(6) of the Road Safety Act 1986 as you have a prior for a s 61 offence, you will be disqualified from driving for a period of eight years from today.
In relation to summary Charge 5, you will be disqualified for six months from today. Those disqualifications will be concurrent with each other.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to a period of three years and eight months imprisonment with a non-parole period of two years.
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